Acts and Regulations

98-6 - Division of Benefits on the Breakdown of a Marriage or Common-law Partnership

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Current to 1 January 2024
NEW BRUNSWICK
REGULATION 98-6
under the
Members’ Pension Act
(O.C. 98-45)
Filed February 6, 1998
Under section 20.2 of the Members’ Pension Act, the Lieutenant-Governor in Council makes the following Regulation:
Citation
2008, c.45, s.18
1This Regulation may be cited as the Division of Benefits on the Breakdown of a Marriage or Common-law Partnership Regulation - Members’ Pension Act.
2008, c.45, s.18
Definitions
2(1)In this Regulation
“Act” means the Members’ Pension Act;   (Loi)
“common-law partner’s portion” means the portion of the portion of the benefit or commuted value of the benefit of a member or minister or a former member or former minister computed under section 5 to which the common-law partner of the member or minister or the former member or former minister is entitled on the breakdown of their common-law partnership under a written agreement in settlement of rights arising as a consequence of the breakdown of their common-law partnership or under a decree, order or judgment made by a competent tribunal;(allocation de conjoint de fait)
“past service” means the number of periods of pensionable service credited to a member or minister or a former member or former minister under the Act that relate to service before the date on which the member or minister or the former member or former minister became a contributor under the Act;   (service antérieur)
“spouse’s portion” means the portion of the portion of the benefit or commuted value of the benefit of a member or minister or a former member or former minister computed under section 5 to which the spouse of the member or minister or the former member or former minister is entitled on marriage breakdown under a written agreement in settlement of rights arising as a consequence of marriage breakdown or under a decree, order or judgment made by a competent tribunal.(allocation de conjoint)
Definitions for Act and regulation
2(2)In section 20.1 of the Act and in this Regulation
“commuted value” means the value of a benefit that a member or minister or a former member or former minister is or may be entitled to under the Act and that is to be divided under section 20.1 of the Act, which value is calculated in accordance with subsection 3(1), (2), (3) or (4), as the case may be, and as of the date of the breakdown of his or her marriage or common-law partnership.(valeur de rachat)
2008, c.45, s.18
Commuted value
3(1)Subject to subsection (2) and except as provided for in subsections (3) and (4), the commuted value of a benefit that a member or minister or a former member or former minister is entitled to under the Act and that is to be divided under section 20.1 of the Act shall not be less than the value determined in accordance with the Recommendations for the Computation of Transfer Values from Registered Pension Plans adopted by the Canadian Institute of Actuaries and effective on September 1, 1993.
3(2)If the Minister establishes or approves a method for determining the commuted value that is different from the method established under subsection (1), the value determined by the method established or approved by the Minister shall prevail.
3(3)The commuted value of a benefit that a member or minister would be entitled to under the Act if the member or minister ceased to be a member as of the date of the breakdown of his or her marriage or common-law partnership shall be determined using
(a) the benefit formula under the Act,
(b) the benefits, salary and contribution history in existence on the date of the breakdown of the marriage or common-law partnership,
(c) the actuarial and economic assumptions contained in the Recommendations for the Computation of Transfer Values from Registered Pension Plans adopted by the Canadian Institute of Actuaries and effective on September 1, 1993, to the extent that they are consistent with the Act and this Regulation,
(d) the value of any survivor benefits under the Act either before or after the commencement of payment of the benefit,
(e) any escalated adjustment, if it is provided for under the Act, and
(f) the retirement date which shall be the same as assumed in the most recent actuarial valuation of the Act.
3(4)If the benefit of a former member or former minister that is an annual pension, minister’s pension or deferred pension is to be divided on the breakdown of his or her marriage or common-law partnership under section 20.1 of the Act, the commuted value of the benefit shall be the commuted value of the annual pension, minister’s pension or deferred pension determined using
(a) the periodic amount of the annual pension, minister’s pension or deferred pension being paid or payable at the date of the breakdown of the marriage or common-law partnership,
(b) the actuarial and economic assumptions contained in the Recommendations for the Computation of Transfer Values from Registered Pension Plans adopted by the Canadian Institute of Actuaries and effective on September 1, 1993, to the extent that they are consistent with the Act and this Regulation,
(c) the value of any survivor benefits provided under the Act either before or after the commencement of payment of the annual pension, minister’s pension or deferred pension, and
(d) any escalated adjustment, if it is provided for under the Act.
2008, c.45, s.18
Date of marriage
Repealed: 2008, c.45, s.18
2008, c.45, s.18
4Repealed: 2008, c.45, s.18
2008, c.45, s.18
Calculation of portion of commuted value to be divided on the breakdown of a marriage or common-law partnership
2008, c.45, s.18
5The portion of the commuted value of the benefit of a member or minister or a former member or former minister that may be divided on the breakdown of his or her marriage or common-law partnership under section 20.1 of the Act shall be computed using the following formula:
p
=
a
×
c
b
where
p = the portion of the commuted value of the benefit that may be divided on the breakdown of the marriage or common-law partnership;
a = the number of periods of pensionable service included in “b” that were purchased by and credited to the member or minister or the former member or former minister in the period between the date of marriage and the date of marriage breakdown, inclusive, or between the date of common-law partnership and the date of the breakdown of the common-law partnership, inclusive, as the case may be, including past service purchased by and credited to the member or minister or the former member or former minister during that period;
b = the total number of periods of pensionable service credited to the member or minister or the former member or former minister under the Act for which benefits were accrued by the member or minister or the former member or former minister, including past service; and
c = the commuted value of the benefit calculated in accordance with subsection 3(1), (2), (3) or (4), as the case may be.
2008, c.45, s.18
Types of instruments for portion of benefit payable to spouse or common-law partner
2008, c.45, s.18
6(1)Subject to the requirements of the Income Tax Act (Canada), the spouse or common-law partner of a member or minister or a former member or former minister shall direct the Minister
(a) to transfer the portion of the benefit to which the spouse or common-law partner is entitled under section 20.1 of the Act to another pension plan with the consent of the administrator of that plan or to a locked-in retirement savings arrangement, or
(b) to purchase a deferred life annuity or a life annuity with the portion of the benefit to which the spouse or common-law partner is entitled under section 20.1 of the Act.
6(2)Subject to the requirements of the Income Tax Act (Canada), if the spouse or common-law partner of a member or minister or a former member or former minister fails to direct the Minister to make the transfer or purchase in accordance with subsection (1) within 90 days after the later of the date on which the calculation was performed or the date of the written agreement in settlement of rights arising as a consequence of the breakdown of their marriage or common-law partnership or the decree, order or judgment made by a competent tribunal, the spouse or common-law partner shall be deemed to have directed the Minister to purchase a deferred life annuity or life annuity with the portion of the benefit to which the spouse or common-law partner is entitled under section 20.1 of the Act.
6(3)If the portion of the benefit to which the spouse or common-law partner of a member or minister or a former member or former minister is entitled under section 20.1 of the Act exceeds the limit allowed under the Income Tax Act (Canada), the excess amount shall be paid to the spouse or common-law partner, as the case may be, in cash.
2008, c.45, s.18
Interest on spouse’s portion or common-law partner’s portion
2008, c.45, s.18
7(1)If the commuted value of a benefit of a member or minister or a former member or former minister is divided under section 20.1 of the Act, the spouse’s portion shall be credited with interest at a rate not lower than the rate in subsection (2) from the date of marriage breakdown to the date on which the spouse’s portion is transferred or used for a purchase under section 6.
7(1.1)If the commuted value of a benefit of a member or minister or a former member or former minister is divided under section 20.1 of the Act, the common-law partner’s portion shall be credited with interest at a rate not lower than the rate in subsection (2) from the date of the breakdown of their common-law partnership to the date on which the common-law partner’s portion is transferred or used for a purchase under section 6.
7(2)The minimum rate for the purposes of subsection (1) or (1.1) is the average of the yields of five year personal fixed term chartered bank deposit rates, published in the Bank of Canada Review as CANSIM Series B14045, over the most recent period for which the rates are available, with an averaging period equal to the number of months in the period for which interest is to be credited to a maximum of twelve months.
2008, c.45, s.18
Revaluation of benefits
8(1)If the commuted value of the benefit of a member or minister is divided under section 20.1 of the Act, the annual pension, minister’s pension or deferred pension to which the member or minister is entitled on ceasing to be a member shall be revalued so that it represents the annual pension, minister’s pension or deferred pension to which the member or minister would have been entitled at that time had the division not been made, less the spouse’s portion or common-law partner’s portion, including any escalated adjustment calculated in accordance with the escalation formula in effect under the Act on the date of the breakdown of their marriage or common-law partnership, as the case may be, between the date of the breakdown of the marriage or common-law partnership and the date of ceasing to be a member.
8(2)If the commuted value of the benefit of a former member or former minister is divided under section 20.1 of the Act and the former member or former minister is receiving an annual pension or minister’s pension at that time, the annual pension or minister’s pension that the former member or former minister is receiving shall be revalued so that it represents the annual pension or minister’s pension that the former member or former minister would have been receiving at that time had the division not been made, less the spouse’s portion or common-law partner’s portion, including any escalated adjustment calculated in accordance with the escalation formula in effect under the Act on the date of the breakdown of their marriage or common-law partnership, as the case may be, between the date of the breakdown of the marriage or common-law partnership and the date of revaluation.
8(3)Subsections 3(1) and (2) apply with the necessary modifications to a member’s or minister’s benefit after it has been revalued under subsections (1) and (2).
8(4)If the commuted value of a benefit of a member or minister or a former member or former minister is divided under section 20.1 of the Act, the contributions with interest made by the member or minister or the former member or former minister shall be revalued immediately by deducting from them an amount calculated in accordance with subsection (5) as of the date of the breakdown of his or her marriage or common-law partnership, as the case may be.
8(5)The amount to be deducted in a revaluation under subsection (4) shall be calculated using the following formula:
A
=
a
×
m
×
p
b
where
A = amount to be used in revaluation;
a = the number of periods of pensionable service included in “b” that were purchased by and credited to the member or minister or the former member or former minister in the period between the date of marriage and the date of marriage breakdown, inclusive, or between the date of common-law partnership and the date of the breakdown of the common-law partnership, inclusive, as the case may be, including past service purchased by and credited to the member or minister or the former member or former minister during that period;
b = the total number of periods of pensionable service credited to the member or minister or the former member or former minister under the Act for which benefits were accrued by the member or minister or the former member or former minister, including past service;
m = the total contributions with interest made by the member or minister or the former member or former minister as of the date of the breakdown of his or her marriage or common-law partnership; and
p = the proportion that the spouse’s portion or common-law partner’s portion, as the case may be, bears to the portion of the commuted value of the benefit computed under section 5.
2008, c.45, s.18
Adjustment for portion of benefit already paid
9(1)The portion of the benefit to which the spouse or common-law partner of a member or minister or a former member or former minister is entitled under section 20.1 of the Act shall be reduced by the spouse’s share or common-law partner’s share, as the case may be and as calculated under subsection (2), of any payments of an annual pension, minister’s pension or deferred pension, or of any combination of these, that are made between the date of the breakdown of their marriage or common-law partnership, as the case may be, and the earlier of the date of a transfer under subsection 6(1) and the date of revaluation of benefits under subsections 8(1) and (2).
9(2)The spouse’s share or common-law partner’s share for the purposes of subsection (1) shall be calculated using the following formula:
D
=
P
×
p
where
D = spouse’s share or common-law partner’s share, as the case may be;
P = payments of an annual pension, minister’s pension or deferred pension, or of any combination of these, that are made between the date of the breakdown of the marriage or common-law partnership, as the case may be, and the earlier of the date of a transfer under subsection 6(1) and the date of revaluation of benefits under subsections 8(1) and (2), plus interest at the rate prescribed in subsection 7(2); and
p = the proportion that the spouse’s portion or common-law partner’s portion, as the case may be, bears to the portion of the commuted value of the benefit computed under section 5.
2008, c.45, s.18
Breakdown of a subsequent marriage or common-law partnership
2008, c.45, s.18
10This Regulation applies with the necessary modifications for the purposes of the division of benefits on the breakdown of a second or subsequent marriage or common-law partnership.
2008, c.45, s.18
Commencement
11This Regulation shall be deemed to have come into force on January 1, 1997.
N.B. This Regulation is consolidated to December 19, 2008.